Importance Of Probation In Employment

Importance of Probation in Employment

Employment contracts are governed by the Employment Act, 2007 (the Act). The Act provides an option for employers to place their new employees on probation before the confirmation of employment to ascertain their suitability and capability for the assigned role or position.

As a rule, a probationary period should not be for a period of not more than six (6) months, however, it can be extended for a further six (6) months with the consent of the concerned employee. This means that the probationary period cannot exceed an aggregate of one (1) year.

In the Kenyan case of Benjamin Nyambati Ondiba vs. Egerton University [2014] eKLR, the court held that “an employer puts an employee on probation so as to be able to assess his performances and capability within the workforce and the essence of section 42 of the Employment Act, 2007 is to allow the employer terminate the contract of service less time where the employee’s performance should be found wanting.”

in the case of Danish Jalango & Another versus Amicabre Travel Services [2014] eKLR, the court held that “an employee whose contract is subject to probation under section 42(2) of the Employment Act, 2007 can be terminated without the application of the requirements of section 43 and 45 of the Act with regard to procedural and substantive justification.” 

The position on probation has been that an employer could terminate an employee during the probationary period without cause or subjecting the employee to a hearing. For instance, in the case of Danish Jalango & Another versus Amicabre Travel Services [2014] eKLR, the court held that “an employee whose contract is subject to probation under section 42(2) of the Employment Act, 2007 can be terminated without the application of the requirements of section 43 and 45 of the Act with regard to procedural and substantive justification.”

However, there has been a recent development on the issue of termination of probationary contracts in Kenya.

In the recent decision of the Employment and Labour Relations Court in case of Monica Munira Kibuchi & others v. Mount Kenya University (2021) eKLR the Court has now clarified that employers must subject employees to a fair hearing and process prior to terminating their employment during probation.

The Court began by highlighting the provisions of section 41 and 42 of the Act. Section 42(1) of the Act provides that, “The provisions of Section 41(1) shall not apply where a termination of employment terminates a probationary contract.” Section 41(1) of the Employment Act provides for substantive and procedural fairness during termination of employment.